“Sharing” with the Court: The Discoverability of Private Social Media Accounts in Civil Litigation Zoe RosenthalNOTE

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INTRODUCTION: FACEBOOK AND THE PREVALENCE OF SOCIAL MEDIA IN LITIGATION DISCOVERY

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hen Facebook was first founded in 2004, few could have imagined its quick popularity, pervasive use, and cultural prevalence. It was perhaps even more difficult to conceive that Facebook, among other social media networks, would ultimately become a common and increasingly widespread part of litigation discovery proceedings. However, courts, counsel, and adversarial parties quickly realized that, because “an overwhelming majority of adults online . . . use social networking sites,”1

there is a wealth of information to be found by incorporating social media into traditional discovery requests. Today, there are over 1.19 billion active Facebook users, and one in five page views in the United States occurs on Facebook.1 As of 2012, adults had also become the most common users of Facebook, with 29.7% of users age 25 to 34.2 Litigators have realized that Facebook and other social media sites offer a “gold mine of potential evidence,” as these sites are “specifically designed to encourage users to record in writing and share with others what they are thinking or doing—and even where they are located—at any given moment.”3

The benefits of social media discovery have become clear, evidenced by the increasing use of social networking in litigation.4 For example, the American Academy of Matrimonial Lawyers found that 81% of attorneys who responded to its February 2010 study reported using evidence found on social networking sites in their cases.5 Facebook was found to be the most popular source of evidence, with 66% of attorneys responding indicating that they had used evidence found on the site.6

Still, the introduction of this new technology has presented a unique challenge for the courts, “due to [social networking sites’] relative novelty and their ability to be shared by or with someone besides the original poster.”7 Furthermore, the varied and changing privacy controls on social media sites like Facebook have raised questions about the appropriate depth of discovery, as well as the correct means of such production. Yet, only recently did there begin to be some “push back against efforts to obtain complete access to an individual’s social networking profile, even those portions restricted as private.”8

Nearly all social networking sites offer options to allow portions of a user’s profile to remain “public” while other portions can be set to remain “private.” The “private” portions of a user’s profile are typically only accessible to those other users who are “friends” of the individual user. While it is obvious that any public portions of an individual’s social media account are available and accessible to adversarial parties, courts have struggled to create a coherent, consistent framework for the discoverability of the private content of a user’s social media account. More specifically, courts have not consistently answered the question of whether the entire contents of an individual’s private social media page are discoverable; or, rather, whether only certain “relevant” portions should be produced. This question becomes intertwined with the issue of how to best facilitate production of the content of social media sites, as certain means of production may inadvertently require broad access to a user’s private content. This note aims to address and resolve these issues.

First, in Part I, I will address some of the relevant background pertaining to social media discovery, and specifically, whether it is considered to generally be discoverable. Part II will then address the Stored Communications Act and how it may be applied to social media discovery requests. This will be followed by a discussion of the standards courts have developed to determine when they should permit discovery of an individual’s private social media account. In Part II, I discuss the various approaches to determine the appropriate depth of social media discovery and how courts have explored different options to prevent “overbroad” discovery requests. Next, in Part III, I address how courts have ruled regarding the actual facilitation of discovery requests involving an individual’s private social media account. Finally, in Part IV, I aim to resolve questions about how to treat these types of social media discovery requests. Specifically, I make arguments about how courts should go about ruling on the depth of social media discovery requests and what, if any, determinations such courts should make about the means of facilitating these discovery requests.

* J.D. Candidate, Fordham University School of Law, 2015; B.A., cum laude, Bates College, 2010. Thank you to Professor James Kainen for advising me on this Note. Thank you to Adam Phillips for his endless patience and support and to my family for their encouragement and love.

Id. (“[I]t is becoming standard practice in litigation today to use social media sites to research parties; to establish or refute facts; to determine or rebut state of mind or health; and to identify, impeach or bolster the credibility of witnesses.”). ↩